ICJ Decision: Thoughts

July 22, 2010 marked a historic day for Kosovo when the International Court of Justice declared that Kosovo's Declaration of Independence was not illegal under international law. That night, the streets were riddled with Kosovo and Albanian flags, as youngsters partied, now having a new excuse to go to clubs on a Thursday night.

Yet, what are the implications? I sat in a cafe, watching the live proceedings on Al-Jazeera in English with my classmates, and one fascinating Serbian intellectual (who used to hang with Derrida and Foucault). The proceedings could bore anyone to sleep. Regardless, we all got beers and smoked cigarettes as if it were a sporting game. Barnaby Philips from Al-Jazeera gave commentary from a top the Grand Hotel Prishtina as if he were giving a play by play in football. The Hague looked like something out of Kafka: tall, menacing wood panels, with green felt adorning the judge's stand, and men dressed in large black robes with lace kerchiefs, an old man reading the proceedings as other judges remain silent.

Suddenly, it says on the screen that Kosovo's Declaration of Independence was legal. Cool. But we are skeptics in the audience. No statement on status? No statement on independence itself?

You see, the Court only decided on the legality of a DECLARATION of independence, not on Kosovo's status as a nation, or legality as an independent state. From the ICJ:

56. … The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act ⎯ such as a unilateral declaration of independence ⎯ not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.

So, essentially, this was a question on a declaration, not on the rights assumed to be exercised under it.

Yet still, the BBC, Al-Jazeera and other news stations immediately slate the event as Kosovo's Independence is a legal matter itself.

Some concerns:

I wonder now, if other nations will use this as a prompt to actually declare independence, under the assumption of having a legal precedent, when in fact, the legitimacy of their statuses could be rather flawed. Meaning to say, if the declaration is legal and they take it as an exercise of the declaration is legal, what could this mean for the future of their states? To be honest, how feasible is it for the Basque region to declare independence? Did the ICJ open Pandora's box?

Next, Serbia shot itself in the foot if it was expecting a statement on status of Kosovo by asking the wrong question. They, instead, got a Kosovo Favored 10-4 response that Kosovo's declaration was legal. Naturally, asking a question on the status of Kosovo might have been premature, especially when it is such a tenuous topic in Serbia at the moment. If they have voted on the status of Kosovo, and it was favorable, would the country go into serious political discontent? Already, there is an economic system in place that is heading towards what Greece looks like, and they choose to focus on the status of Kosovo, instead of perhaps putting European integration ahead of status...

As one Serb told me upon the declaration, she was happy for Kosovo. Kosovo deserved this, but she wept for her own people. As she said, they keep on concentrating on Kosovo when we are already a poor country. They won't let it die and it is killing our nation and preventing us from joining the EU and perhaps salvaging ourselves. I want to change things in Serbia, but I'm losing a battle. Serbia, even with the ICJ decision still chooses to ignore their statement and pursue this cause of Kosovo when it is not worth it. Its a huge waste of Money. I hope to tell my children someday that I helped change Serbia, but if this hard-liner attitude keeps up, I may just tell them I left Serbia for their sake.

I weep for Serbia, not because they lost this battle, or even for losing Kosovo, but because they won't give Kosovo up and concentrate on other issues that are more in their power to change.